Hernandez v. United States

• Decision Date: 18 January 1966
• Docket Number: No. 19654.,19654.
• Citation: 353 F.2d 624
• Parties: Manuel L. HERNANDEZ, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

353 F.2d 624 (1965)

Manuel L. HERNANDEZ, Appellant, v. UNITED STATES of America, Appellee.

No. 19654.

United States Court of Appeals Ninth Circuit.

October 29, 1965.

Rehearing Denied January 18, 1966.

Ronald S. Rosen, Hollywood, Cal., for appellant.

Manuel L. Real, U. S. Atty., Shelby Gott, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before POPE, MERRILL, and BROWNING, Circuit Judges.

BROWNING, Circuit Judge.

Appellant was convicted of transporting and concealing 114 pounds of marihuana on April 5, 1964, in Los Angeles County, California, in violation of 21 U.S.C.A. § 176a. He asserts that his conviction was based upon evidence (the 114 pounds of marihuana) secured through an unconstitutional search and seizure of two suitcases and a briefcase at the Los Angeles International Airport.

Los Angeles police had observed a recurring pattern in incidents involving the illicit transportation of marihuana. Large lots of marihuana were being brought to Los Angeles from Mexico by automobile, then carried from Los Angeles to New York City in the luggage of persons traveling on commercial air flights. The couriers were Latin-Americans. They traveled first class on nonstop flights. They did not make advance reservations. Their luggage was new and expensive, usually bore the brand name "Ventura," and had combination locks. Their bags were exceedingly heavy because of the weight of the marihuana. They paid their fares and weight overcharges in cash with bills of large denomination. Eight such cases had been investigated in the two years preceding appellant's apprehension. Sergeant Butler, who searched appellant's bags, had participated personally in four such investigations during the preceding year — one, a week prior to the search of appellant's bags.

Airport employees were asked to notify the police immediately if a person fitting the described pattern appeared. At about 8:30 p. m. on April 5, 1964, a ticket agent at the Los Angeles airport called the airport police substation. Sergeant Butler responded. The ticket agent told him that a person later identifield as appellant had purchased a first-class ticket on a 10:50 p. m. nonstop flight to New York, that he had no advance reservation, that his two bags weighed 155 pounds (115 pounds in excess of the 40 pounds which could be carried without additional charge), and that he had paid for his fare and overweight charges with one hundred-dollar bills.

Sergeant Butler went to the storage area in the airport terminal building where appellant's bags had been sent to await loading. The bags were new "Ventura" bags with combination locks. Sergeant Butler lifted them to feel their weight. He pressed their sides together, forcing air from the interior. Smelling the escaping air, he detected the odor of marihuana and called the police department's narcotics division. Two officers responded. They too lifted the bags, squeezed them, and smelled the escaping air. They and Sergeant Butler then located appellant upstairs in a public bar in the terminal building and arrested him. The bags were opened after appellant's arrest.

The government argues that the bags were not searched until they were opened. We cannot agree. The manipulation of appellant's bags by Sergeant Butler prior to appellant's arrest constituted a "search" within the meaning of the Fourth Amendment. The contents of the bags were not exposed to Sergeant Butler's sight or smell before the bags were squeezed. He detected the odor of marihuana as the result of an "exploratory investigation," an "invasion or quest," a "prying into hidden places for that which was concealed" — conduct which has been repeatedly said to characterize a "search." 38 Words & Phrases 401-02 (Perm. 2d), 123-26 (1965 P.P.) Technical trespass is not required. Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). See also Regalado v. California, 374 U.S. 497, 83 S.Ct. 1875, 10 L.Ed.2d 1044 (1963); McDonald v. United States, 335 U.S. 451, 454 (1948) But even if it were, it occurred here. "A trespass to a chattel may be committed by intentionally * * * using or intermeddling with a chattel in the possession of another." Restatement 2d, Torts § 217 (1964). See also Prosser, Law of Torts 76 (3d ed. 1965).

The question remains whether the search of appellant's bags violated the Fourth Amendment. Sergeant Butler had no warrant. Hence the search was invalid unless made (1) incident to a lawful arrest, or (2) in "exceptional circumstances" — in this case, that contraband was threatened with imminent removal or destruction. United States v. Ventresca, 380 U.S. 102, 106-107, 107 n. 2, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Cipres v. United States, 343 F.2d 95, 98 n. 9 (9th Cir. 1965). See also Chapman v. United States, 365 U.S. 610, 614-616, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961); United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 96 L.Ed. 59 (1951); Johnson v. United States, 333 U.S. 10, 14-15, 68 S.Ct. 367, 92 L.Ed. 436 (1948).

(1) We hold that the search was not incident to appellant's subsequent arrest in the upstairs bar — not because it was too "remote in time or place from the arrest" see Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed. 2d 777, (1964) (a question we do not reach) — but rather, because the search was in fact independent of the arrest. Sergeant Butler did not go to the storage area to arrest appellant and incidentally search him and his bags. He knew appellant was not there. His sole purpose was to search the bags. See Lustig v. United States, 338 U.S. 74, 79-80, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949); Jones v. United States, 357 U.S. 493, 500, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958); Taylor v. United States, 286 U.S. 1, 6, 52 S.Ct. 466, 76 L.Ed. 951 (1932).

(2) The burden rested on the government to prove that it would not have been practical to secure a warrant before the bags were removed. United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 96 L.Ed. 59 (1951). Cf. Cohen v. Norris, 300 F.2d 24, 32 (9th Cir. 1962). The police were first contacted at 8:30 p. m. Appellant and his luggage were scheduled to depart at 10:50 p. m. There was uncontradicted testimony that a warrant could not have been obtained until the following morning. Compare Johnson v. United States, supra, 333 U.S. at 15, 68 S.Ct. 367. Absent contrary evidence, this was a sufficient showing.

The fact that it was impractical to secure a warrant "did not dispense with the need for probable cause." Henry v. United States, 361 U.S. 98, 104, 80 S.Ct. 168, 172, 4 L.Ed.2d 134 (1959). The trial court concluded that Sergeant Butler had reasonable grounds to believe that the bags contained contraband — though thinking it "a very close question." "Giving due weight to that finding," Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 413, 9 L.Ed. 2d 441 (1963), we arrive at the same conclusion.

"The troublesome line * * * is one between mere suspicion and probable cause. That line necessarily must be drawn by an act of judgment formed in the light of the particular situation and with account taken of all the circumstances." Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L. Ed. 1879 (1949). No one of the indicia drawn from prior incidents of illicit traffic was alone sufficient to justify a reasonable man in the belief that appellant's bags contained contraband, but taken together they rendered it probable. A search based upon their concurrence would not likely invade the privacy of an innocent person. See Sobel, Search & Seizure 52 (1964). Compare Ellis v. United States, 105 U.S.App.D.C. 86, 264 F.2d 372, 374 (1959).

No doubt first-class passengers do not always make reservations, and heavy luggage is not unusual. But there was testimony that it is "very, very rare" for a first-class passenger who has heavy luggage to appear and purchase a ticket without prior arrangement.¹ There was also testimony that it is difficult to pack as much...